California Court of Appeal Mar 26, 2015 No. D066882Unpublished
Filed 3/26/15 P. v. Salazar CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066882
Plaintiff and Respondent,
v. (Super. Ct. No. FBA900513)
JUAN CARLOS SALAZAR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino County,
Victor R. Stull, Judge. Reversed.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette and Julie L. Garland,
Assistant Attorneys General, William M. Wood and Brendon W. Marshall, Deputy
Attorneys General, for Plaintiff and Respondent.
A jury convicted Juan Carlos Salazar of nine counts of lewd acts on a child under
the age of 14 (Pen. Code, § 288, subd. (a)), and found true allegations that as to counts 1
through 7, there was more than one victim (Pen. Code, § 667.61, subd. (b)). The court
sentenced defendant to 58 years to life in state prison, consisting of consecutive
indeterminate 15-year-to-life terms on counts 1, 2 and 7, a determinate low term of three
alleged lack of cooperation or discussion, court's action in rereading instructions
concerning how the jury should deliberate was not an abuse of discretion; the court is
authorized to take less drastic steps than discharge of a juror to deter any misconduct or
misunderstanding it has reason to suspect]; People v. Cleveland, supra, 25 Cal.4th at p.
480 [it is often appropriate for a trial court that questions whether all of the jurors are
participating in deliberations to reinstruct the jurors regarding their duty to deliberate and
1 Concededly, "a trial court's inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury's deliberations. The inquiry should focus upon the conduct of the jurors, rather than upon the content of the deliberations. Additionally, the inquiry should cease once the court is satisfied that the juror at issue is participating in deliberations and has not expressed an intention to disregard the court's instructions or otherwise committed misconduct, and that no other proper ground for discharge exists." (People v. Cleveland, supra, 25 Cal.4th at p. 485.) But here, the court would have been well within its discretion to inquire of the other jurors about Juror No. 3's claimed isolating conduct in the jury room, whether she in fact pushed her chair away, faced the wall, and left the room for long periods during deliberations. 18
to permit the jury to continue deliberations before making further inquiries that could
intrude upon the sanctity of deliberations]; People v. Bradford (1997) 15 Cal.4th 1229,
1350-1352 [when faced with a request to remove " 'a few hostile jurors,' " court asked the
jury as a whole whether they could continue deliberations and reread several jury
instructions concerning its duty to deliberate]; People v. Diaz (2002) 95 Cal.App.4th 695,
700-702 [questioning several jurors then bringing all of the jurors in for rereading of
instructions relating to juror duties before deciding the next day after further questioning
to dismiss a juror].) Nor did the court permit the foreperson to attempt to resolve the
matter. Rather, although the foreperson expressed a desire and willingness to speak with
Juror No. 3 before the court inquired of her, the court out of a concern that not speaking
with her itself might "waste a lot more time," called Juror No. 3 into the courtroom and
confronted her on her behavior. Under the circumstances here, the court erred by not
taking a more limited or measured approach in that aspect of its investigation: "[T]o
ensure the sanctity and secrecy of the deliberative process, a trial court's inquiry into
grounds for discharging a deliberating juror should be as limited as possible, and should
cease once the court is satisfied that the juror in question 'is participating in deliberations
and has not expressed an intention to disregard the court's instructions or otherwise
committed misconduct, and that no other proper ground for discharge exists.' " (People v.
Having viewed the record as a whole, it does not otherwise reflect as a
demonstrable reality that Juror No. 3 was unable to function as a juror or had prejudged
the case. The court based its dismissal of Juror No. 3 on three grounds: (1) the
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foreperson's and Juror No. 3's responses to its questions after the foreperson sent her note;
(2) the court's observation that Juror No. 3 was sleeping on a bench some distance from
other jurors while they chatted outside the courtroom; and (3) Juror No. 3's attitude and
defensiveness during her questioning by the court. But the foreperson's account, which
as we have stated conflicted with Juror No. 3's account, did not reflect that Juror No. 3
had prejudged the case or that she exhibited a total failure to deliberate or participate: the
foreperson recounted that Juror No. 3 "sometimes" turned her chair around and did not
want to participate in "some" of the conversations. Further, the foreperson confirmed that
after Juror No. 3's private discussion with the other juror—immediately after the
foreperson sent her note—Juror No. 3's attitude had changed and she got "a little more
participant." The foreperson also had confirmed that the jury took a vote on all nine
counts at the outset and the jury spent the next day listening to a readback of testimony;
for Juror No. 3 to have related that she was prepared to vote on all counts at the point of
the third day of deliberations is not extraordinary or indicative of any inclination to
ignore the jury's discussions or refusing to deliberate. The foreperson's opinions about
Juror No. 3's behavior, including that she was not a "team player," should not have played
any role in the court's ruling. (People v. Allen, supra, 53 Cal.4th at p. 75.) Juror No. 3's
"conduct during deliberations may have annoyed other jurors, but that is not dispositive
evidence that [she] had prejudged the case." (Id. at p. 74.) "Great tension may arise
when a group of people are asked to make an important decision and views vary. While
some jurors may be understandably impatient that another will not adopt their view and
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abandon his or her own, the mere failure to change a vote is not necessarily misconduct."
(Id. at p. 75.)
The court's observation of Juror No. 3's conduct outside the courtroom—sleeping
on a bench a distance away from the other jurors—does not support a conclusion under
any standard of review that she was unable or unwilling to deliberate, had prejudged the
case, refused to heed the court's instructions, or was otherwise unable to carry out her
duties as a juror. This observation was an insufficient basis for the court to discharge her
for failing to perform her duties as a juror.
Finally, Juror No. 3's defensiveness in questioning about her behavior in the jury
deliberation room provides no ground for her removal. It was entirely predictable and
understandable, as the court and defense counsel acknowledged, that Juror No. 3 would
defend her actions and behavior to the court and counsel.
Our conclusion in this case is guided by People v. Allen, supra, 53 Cal.4th 60,
where the California Supreme Court reversed the trial court's dismissal of a juror, Juror
No. 11, who had reportedly made up his mind before deliberations commenced. When
interviewed, other jurors were equivocal as to whether he made such statements.2 The
2 When questioned by the trial court, Juror No. 11 said that he had not made up his mind and he had voted undecided during a preliminary vote on the fifth day of deliberations. (People v. Allen, supra, 53 Cal.4th at p. 74.) Another juror asserted that several times before deliberations began, Juror No. 11 had said he was waiting for the prosecutor to bring her case forward, but it never happened. (Id. at p. 66.) Juror No. 11 admitted having said more than once during deliberations that when the prosecution rested, it had not convinced him. (Id. at p. 68.) The juror who reported these statements to the trial court felt that Juror No. 11 was not being honest in denying that he had prejudged the case. (Ibid.) Yet another juror said that he or she suspected that Juror No. 21
high court said: "This record does not manifestly support [that the juror prejudged the
case.] [¶] Although the record amply demonstrates that during deliberations Juror No.
11 did say words to the effect that, 'When the prosecution rested, she didn't have a case,'
the precise meaning of his statement is not entirely clear. . . . . [¶] . . . [¶] . . . Juror
No. 11's statement was made during deliberations, and only made reference to his
previous state of mind at a single point during the trial. It did not indicate an intention to
ignore the rest of the proceedings. The Attorney General has cited no case, and we have
found none, in which a juror was discharged for prejudgment based solely on comments
made during deliberations." (Id. at pp. 72-73.) The Allen court pointed out that the
juror's remark was not an " 'unadorned statement' that he had conclusively prejudged the
case. It did not establish that he had ignored further evidence, argument, instructions, or
the views of other jurors. Although [Penal Code] section 1122 requires jurors not to form
an opinion about the case until it has been submitted to them, 'it would be entirely
unrealistic to expect jurors not to think about the case during the trial . . . . ' [Citation.]
A juror who holds a preliminary view that a party's case is weak does not violate the
court's instructions so long as his or her mind remains open to a fair consideration of the
evidence, instructions, and shared opinions expressed during deliberations. [¶] . . . The
record does not demonstrate that Juror No. 11 refused to listen to all of the evidence,
11 began deliberations with his mind made up, but later had said, at the start of deliberations, that he was undecided. (Id. at p. 67.) Another juror said that Juror No. 11 said that he had his mind made up before deliberations began. (Ibid.) Another juror said the same thing, but added that Juror No. 11 then recanted his statement. (Ibid.)
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began deliberations with a closed mind, or declined to deliberate." (Allen, supra, 53
Cal.4th at p. 73, italics added.)
The court further pointed out that though the juror had a "strong opinion" about
the case, he nevertheless was participating in jury discussions. (People v. Allen, supra,
53 Cal.4th at p. 54.) His conduct was consistent with what he had told the court: that he
had not made up his mind before deliberations began, but "[t]he court here . . . implicitly
rejected his denials of prejudging the case. Yet, the court made no findings that his
'undecided' vote and participation were somehow a sham or lacking in good faith.
Moreover, the court did not ask Juror No. 11 what he meant by his statement. Nor did it
attempt to resolve the matter with curative instructions." (Id. at p. 74.)
Allen found the trial court's approach deficient in that it relied on the opinions of
many jurors whose stories differed, but found that the juror in question had " 'made it
relatively clear to a majority of the jurors here that he . . . had his mind made up at the
time . . . before the matter had been submitted to the jury.' " (People v. Allen, supra, 53
Cal.4th at p. 75.) This was held to be inconsistent with the record. (Ibid.)
Finally, the court stated: "The reality that a juror may hold an opinion at the
outset of deliberations is, as we have noted [citation], reflective of human nature. It is
certainly not unheard of that a foreperson may actually take a vote as deliberations begin
to acquire an early sense of how jurors are leaning. We cannot reasonably expect a
juror to enter deliberations as a tabula rasa, only allowed to form ideas as conversations
continue. What we can, and do, require is that each juror maintain an open mind,
consider all the evidence, and subject any preliminary opinion to rational and collegial
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scrutiny before coming to a final determination. [¶] . . . [¶] Certainly, a court may not
discharge a juror merely because he or she harbors doubts about the prosecution's case.
[Citation.] That Juror No. 11 was unimpressed by the strength of the evidence and
unpersuaded by his colleagues' assertions during deliberations does not amount to
prejudgment. To conclude otherwise would . . . undermine the principle that both parties
are entitled to the independent judgment of each individual juror." (People v. Allen,
supra, 53 Cal.4th at pp. 75-76, italics added.)
Based on the foregoing, we cannot uphold the court's dismissal of Juror No. 3
during the jury's deliberations. The record does not reflect that the court exercised "great
caution" in reaching its decision to excuse a sitting juror (People v. Allen, supra, 53
Cal.4th at p. 71); the basis for her discharge does not appear on the record as a
demonstrable reality; and the court's conclusion is not manifestly supported by the
evidence on which the court relied. (Ibid.) All of these protections are important, as
" '[t]he right to unbiased and unprejudiced jurors is an inseparable and inalienable part of
the right to a trial by jury guaranteed by the constitution.' " (People v. Earp (1999) 20
Cal.4th 826, 852; In re Hamilton (1999) 20 Cal.4th 273, 293 ["An accused has a
constitutional right to a trial by an impartial jury."].) Because Juror No. 3's conduct
during or outside of deliberations does not establish either prejudgment or a refusal to
deliberate under these standards, the trial court abused its discretion in discharging her
from the jury.
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II. Constitutionality of Evidence Code Section 1108
In view of our disposition, we need not reach defendant's remaining challenges to
the admission of propensity evidence and constitutionality of Evidence Code section
1108. (See People v. Allen, supra, 53 Cal.4th at p. 79.)
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DISPOSITION
The judgment is reversed.
O'ROURKE, J.
I CONCUR:
McDONALD, J.
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BENKE, J., Concurring.
The foreperson requested the court allow additional time for the jury to deliberate
before dismissing Juror No. 3, who the foreperson stated was making progress in
participation. I conclude the trial court should have granted the request. Therefore, I
would reverse solely on the ground that the trial court prematurely dismissed Juror No. 3.